EXHIBIT 10.40
SEVENTH AMENDED AND RESTATED PROMISSORY NOTE
(Line of Credit)
DUE DATE: DECEMBER 31, 2003 DETROIT, MICHIGAN
CREDIT LIMIT: $48,000,000 DATED: AS OF DECEMBER 30, 2002
FOR VALUE RECEIVED, ORIGEN FINANCIAL L.L.C., a Delaware limited
liability company (the "Borrower"), promises to pay to the order of SUN HOME
SERVICES, INC., a Michigan corporation ("Lender"), at 31700 Middlebelt Road,
Suite 145, Farmington Hills, Michigan 48334, or at such other place as Lender
may designate in writing, the principal sum of FORTY EIGHT MILLION DOLLARS
($48,000,000) (the "Credit Limit"), or such lesser sum as shall have been
advanced by Lender to Borrower under the loan account hereinafter described,
plus interest as hereinafter provided, all in lawful money of the United States
of America, in accordance with the terms hereof. This Note is subject to the
terms of that certain Second Amended and Restated Subordinated Loan Agreement
between Borrower and Lender (as assignee of Sun Communities Operating Limited
Partnership) dated December 4, 2002, as amended by the First Amendment to Second
Amended and Restated Subordinated Loan Agreement between Borrower and Lender of
even date herewith (the "Line of Credit Loan Agreement"), the terms of which are
incorporated herein by reference.
DUE DATE. The "Due Date" of this Note shall be December 31, 2003;
provided that the due date shall be automatically extended to December 31, 2004
if the Master Repurchase Agreement between Borrower and Credit Suisse First
Boston Mortgage Capital LLC dated December 18, 2001, as amended from time to
time (the "CSFB Agreement"), is renewed on terms acceptable to Lender as of the
expiration of the CSFB Agreement in May 2003.
ADVANCES. This Note is given as evidence of any and all indebtedness of
the Borrower to Lender arising as a result of advances or other credit which may
be made under this Note from time to time. Lender shall, from time to time prior
to the Due Date, make advances to Borrower hereunder upon request therefor by
Borrower, provided that upon giving effect to such advance no Event of Default
(as hereinafter defined) and no event which with notice and/or the passage of
time would become an Event of Default shall exist, and that all representations
and warranties of Borrower theretofore made are true and correct and that Lender
shall not have previously or concurrently declared all amounts owing hereunder
to be immediately due and payable and that the amount requested shall not cause
the total amount outstanding hereunder to exceed Credit Limit. Advances
hereunder may be requested by telephone, in writing or in any other manner
acceptable to Lender. The principal amount of indebtedness owing pursuant to
this Note shall change from time to time decreasing in amounts equal to any and
all payments of principal made by the Borrower and increasing by amounts equal
to any and all advances made by Lender to the Borrower pursuant to the terms
hereof. The books and records of Lender shall be conclusive evidence of the
amount of principal and interest owing hereunder at any time, unless Lender
receives a written statement of exceptions from Borrower within ten (10) days
after such statement has been furnished. From time to time but not less than
quarterly, Lender shall furnish Borrower a statement of Borrower's loan account.
INTEREST. The unpaid principal balance of this Note shall bear
interest, computed on the basis of a year of 360 days for the actual number of
days elapsed in a month, at a rate of interest of 700 basis points over LIBOR
(the "Rate"), which Rate shall not be less than 11% per annum or exceed 15% per
annum (the Rate shall be adjusted for purposes of this Note on the last day of
every fiscal quarter
beginning on December 31, 2002), until the entire principal balance of this
Note, and all accrued and unpaid interest has been paid in full.
PAYMENT. Accrued and unpaid interest on the unpaid principal balance of
this Note from time to time shall be due and payable monthly, in arrears, on the
last day of each consecutive month until the Due Date. The remaining principal
balance shall be due and payable on the Due Date, along with any accrued and
unpaid interest as of the Due Date.
All payments made hereunder shall be applied first against costs and
expenses required to be paid hereunder, then against accrued interest to the
extent thereof and the balance shall be applied against the outstanding
principal amount hereof. Borrower expressly assumes all risks of loss or delay
in the delivery of any payments made by mail, and no course of conduct or
dealing shall affect Borrower's assumption of these risks.
DEFAULT. Upon the occurrence of an Event of Default, as defined in the
Amended Loan Agreement, the entire unpaid principal balance and all accrued and
unpaid interest owing under this Note shall, at Lender's option, be immediately
due and payable, together with costs and attorneys fees reasonably incurred by
Lender in collecting or enforcing payment.
Acceptance by Lender of any payment in an amount less than the amount
then due shall be deemed an acceptance on account only, and Borrower's failure
to pay the entire amount then due shall be and continue to be a default. Upon
the occurrence of any Event of Default, neither the failure of Lender promptly
to exercise its right to declare the outstanding principal and accrued unpaid
interest hereunder to be immediately due and payable, nor the failure of Lender
to demand strict performance of any other obligation of Borrower or any other
person who may be liable hereunder, shall constitute a waiver of any such
rights, nor a waiver of such rights in connection with any future default on the
part of Borrower or any other person who may be liable hereunder.
INTEREST RATE LIMITED TO MAXIMUM RATE. Notwithstanding anything herein
to the contrary, in no event shall Borrower be required to pay a rate of
interest in excess of the Maximum Rate. The term "Maximum Rate" shall mean the
maximum non-usurious rate of interest that Lender is allowed to contract for,
charge, take, reserve or receive under the applicable laws of any applicable
state or of the United States of America (whichever from time to time permits
the highest rate for the use, forbearance or detention of money) after taking
into account, to the extent required by applicable law, any and all relevant
payments or charges hereunder, or under any other document or instrument
executed and delivered in connection herewith and the indebtedness evidenced
hereby.
In the event Lender ever receives, as interest, any amount in excess of
the Maximum Rate, such amount as would be excessive interest shall be deemed a
partial prepayment of principal, and, if the principal hereof is paid in full,
any remaining excess shall be returned to Borrower. In determining whether or
not the interest paid or payable, under any specified contingency, exceeds the
Maximum Rate, Borrower and Lender shall, to the maximum extent permitted by law,
(a) characterize any non-principal payment as an expense, fee, or premium rather
than as interest; (b) exclude voluntary prepayments and the effects thereof; and
(c) amortize, prorate, allocate and spread the total amount of
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interest through and including the Due Date (including the period of any
extension or renewal thereof) so that the interest on account of such
indebtedness shall not exceed the Maximum Rate.
SUCCESSORS/ASSIGNS. This Note shall be binding upon Borrower and its
successors and assigns, and the benefits hereof shall inure to Lender and its
successors and assigns.
GENERAL. Borrower and all endorsees, sureties and guarantors hereof
hereby jointly and severally waive presentment for payment, demand, notice of
non-payment, notice of protest or protest of this Note, and Lender diligence in
collection or bringing suit, and do hereby consent to any and all extensions of
time, renewals, waivers or modifications as may be granted by Lender with
respect to payment or any other provisions of this Note. The liability of
Borrower under this Note shall be absolute and unconditional, without regard to
the liability of any other party.
This Note has been executed in the State of Michigan, and all rights
and obligations hereunder shall be governed by the laws of the State of
Michigan.
To secure the payment of all amounts due to Lender by Borrower in
connection with the loan evidenced by this Note and pursuant to terms of the
Line of Credit Loan Agreement and this Note, Borrower has granted Lender a
security interest in the assets described under the following documents: (i) the
First Amended and Restated Security Agreement of even date herewith between
Borrower and Lender, as amended from time to time, (ii) the Second Amended and
Restated Stock Pledge Agreement of even date herewith between Borrower and
Lender, as amended from time to time, and (iii) the First Amended and Restated
Limited Liability Company Interest Security and Pledge Agreement of even date
herewith between Borrower and Lender, as amended from time to time.
This Note is an amendment to and restatement of that certain Sixth
Amended and Restated Promissory Note dated December 4, 2002 executed by Borrower
in favor of Sun Communities Operating Limited Partnership (the "Prior Note"),
and this Note amends, supersedes and replaces the Prior Note.
BORROWER:
ORIGEN FINANCIAL L.L.C., a Delaware
limited liability company
By: /s/ Ronald A. Klein
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Its: Chief Executive Officer
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